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TOU for your website... You want them! Even if only attorneys read them

Posted by Giselle Ayala Mateus | Mar 14, 2021 | 0 Comments

You have probably heard many times that no one reads the terms and conditions of a website. Probably no one really understands how important those terms are. The first thing to consider is that the terms and conditions of a website constitute a binding contract. Additonally, a contract is an instrument to administer risks; having one can be as important as having insurance. 

What kinds of legal issues can we address we the terms and conditions of the website?

Along with the fast development of communications and the Internet, entrepreneurs and attorneys realized that websites could get anywhere you want in the world as long as the user has a connection. This reality creates many opportunities but also risks. To handle those risks, websites contain terms and conditions that allow the owner to take control and explain to users the rules of the game.  Well drafted terms and conditions are intended to cover aspects like who is the party responsible for the website, who is the website's acceptable audience, what kinds of conduct are permitted, what kind of content is allowed, etc. The terms and conditions of a website are so important that many jurisdictions actually impose fines on those websites that do not have them.  Of course, some jurisdictions do not require them. However, a website owner who does not have terms and conditions is subject to any laws, rules, and dispositions of any court. 

1. Party responsible

In the context of the terms and conditions of a website, the party responsible is the individual or entity who owns the content of the website and who has the right to set the rules for using the site. Depending on the case, the website owner may want to use broad language to identify itself, such as, "X inc and all affiliates, associates, subsidiaries, successors in interest...", or it may use more specific language, something like this, "George Louis, New York Artist." In either case, when the owner of a website informs the public of its identity, it is in a better position to exercise its rights, whether in the context of a lawsuit, a copyright infringement action, a commercial transaction, among others.  Additionally, considering that websites are usually created to attack the attention of potential customers, supporters, or people alike, a website owner who informs the public about its identity is in a better position to attract that intended audience.   

Example

Welcome to Amazon.com. Amazon.com Services LLC and/or its affiliates ("Amazon") provide website features and other products and services to you when you visit or shop at Amazon.com, use Amazon products or services, use Amazon applications for mobile, or use software provided by Amazon in connection with any of the foregoing (collectively, "Amazon Services"). Amazon provides the Amazon Services subject to the following conditions.

Source: Amazon.com

2. Accepted Audience

There are websites for children, and there are those whose content is not for children at all. Considering this, having clear and accessible terms and conditions is essential. Internet, Privacy, and Advertising laws are strictly applied when it comes to children. For that reason, advising any visitor about the minimum age of the audience allowed to access can make a difference. To inform the public, some websites use pop-ups or similar tools. Defining the accepted audience also informs visitors about the website's characteristics, the type of content of the site, who has permission or not to access it, whether registration is required or not, among others. The main goal is to offer clarity and limit the legal risk of the website owner. 

Example

You must be at least 13 years old to use the Service. However, children of all ages may use YouTube Kids (where available) if enabled by a parent or legal guardian... If you are under 18, you represent that you have your parent or guardian's permission to use the Service. Please have them read this Agreement with you.If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Service, you are subject to the terms of this Agreement and responsible for your child's activity on the Service. 

Source: Youtube.com

3. Content 

In general terms, a website is like a physical place where the owner shares content with the public. That content may be commercial or not, and it may be subject to special regulations. Additionally, that content may all be created by the owner, or others may create it. Considering all that, a website's terms and conditions should inform visitors about the type of content available, the type of content acceptable, and prohibited content. The inclusion of terms related to permissible content is crucial for those sites that allow user-generated content because, around the topic of content, legal issues of trademark law, copyright, privacy, freedom of expression, and torts may come up. Additionally, a responsible website owner will be interested in reserving her right to remove offensive, damaging, or illegal content. 

Example

Some of our services give you the opportunity to make your content publicly available — for example, you might post a product or restaurant review that you wrote, or you might upload a blog post that you created.... Some of ourservices include content that belongs to Google — for example, many of the visual illustrations you see in Google Maps. You may use Google's content as allowed by these terms and any... Finally, some of our services give you access to content that belongs to other people or organizations — for example, a store owner's description of their own business, or a newspaper article displayed in Google News. You may not use this content without that person or organization's permission, or as otherwise allowed by law. The views expressed in other people or organizations' content are theirs, and don't necessarily reflect Google's views.

Source: Google.com

4. Services or Products

If a website offers services or products to visitors, the first impression of visitors is that the website is the party responsible for the quality of those services or products. In general terms, this is not a problem. However, if the website's position is one of an advertiser, the website must inform visitors about the identity of the party responsible for the quality of the services or products offered to them. In other words, visitors want to know to whom they can complain if there is a problem. If the website is only acting as an intermediary or a place that allows independent parties to connect, it is necessary to disclose this in the terms and conditions. Additionally, it is important to keep in mind that these provisions are for the legal protection of the website and the visitors. Visitors, in general terms, are considered consumers, and the law especially protects consumers.  

Example

First Site Guide is a participant in affiliate programs. That means we earn commissions from some of the services/products recommended on this site. For instance, we participate in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com. We only work with companies that we believe in and share products & services that we used, tested, or worth recommending. That contents, advertising spaces, or links will be identified as such within the guidelines of the FTC disclosure rules. If you have any questions, please feel free to e-mail the First Site Guide team at [email protected]

Source: https://firstsiteguide.com/

5. Privacy Policy

Unless your website collects no information at all, you need a privacy policy. A privacy policy is not only a document legally required to disclose your practices on protecting personal information, it is also the best way to show visitors that you can be trusted and that you have procedures in place to handle their personal information. A good privacy policy contains information about the information that a website collects, the places where the information is stored, the practices and procedures to protect the information, etc. 

Example

This is personally identifiable information that you give to us by filling in forms on our website or by corresponding with us by phone, e-mail, in person or at events or otherwise. It includes information you provide as part of any anti-money laundering checks. The information you give to us may include for example: name, title, address, business telephone number, business email address, fax number, country of origin/nationality, passport number, country of residence, financial and credit card information, personal description, personal preferences, photograph, business-related information, preferences provided by Internet activity, survey responses, marketing efforts, and the name of the company you work for. Information may also be provided as part of correspondence.

Source: https://privacylaw.proskauer.com/

6. Intellectual Property

The terms and conditions of a website are the terms of a contract, the contract between the website and the visitor. Consequently, the contract should contain provisions related to the protection of the website's intellectual property. This section deals with the website's trademarks, copyright, trade secrets, and other proprietary content. Additionally, in the case of a website that serves as a host for the content of other businesses, organizations, or individuals, this section refers to the measures that the website may take in the case of infringement allegations, who might be contacted to report an infringement and any applicable deadlines.

Example

If you (the "Complaining Party") would like to submit a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark (registered with the United States Patent and Trademark Office on the Principal Register or, for foreign marks, registered with the appropriate intellectual property organization of your country; state registrations and registrations on the Supplemental Register are not considered valid for these purposes), GoDaddy requests that the Complaining Party substantiate such claim by either: (i) filling out the form available here, or (ii) providing the following information via email to [email protected]. The words "Trademark Claim" should appear in the subject line of the email. PLEASE NOTE: Filling out the online form is the quickest way to get your claim addressed.

Source: Godaddy.com

7. Disclaimer 

Considering that the internet has diluted the geographic and physical barriers that typically defined commerce in the past, website owners need to limit the scope of their legal risk. A disclaimer in the terms and conditions of a website is intended to limit such a risk. A disclaimer is especially important for websites that offer information to the public and those related to regulated industries like law or health. Additionally, e-commerce websites that may not be able to control and micromanage each and every product offered by the participants of the e-commerce use disclaimers to limit their risk and define the expectations of visitors.   

Example

THE WEB SITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, FEATURES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED THROUGH THE WEB SITE, ARE PROVIDED "AS IS," "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, PLAYABILITY, DISPLAYABILITY, ACCURACY, PRECISION, CORRECTNESS, THOROUGHNESS, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH...

8. Applicable Law and Jurisdiction

This section of a website's terms refers to the substantial law that governs the agreement. This important because a clause that defines the applicable law of a contract gives clarity and certainty to the website owners and visitors. This section is also known as the "choice of law"  provision. It allows the website owner to agree that a particular state's laws will be used to interpret the website terms, even if visitors live in a different state. 

In the end, even if you have tried to cover it all you could be sued by someone who interacted with your website. Considering that, a provision consideration where you may be sued can definitely make a difference. A jurisdiction or "forum selection" provision defines the court with "personal jurisdiction" and "venue." Personal jurisdiction refers to the court's power to exercise authority over a party (the website owner) and the venue is the physical location where a court exercises its power.

Example

Except as otherwise required by applicable law, the Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.

Source: Fitbit.com 

9. Modification of Terms

Finally, there are many circumstances that may justify a revision or a change in the content of a website's terms and conditions. However, considering that these terms constitute a contract, visitors must know when and how the terms can change. Now, including a specific form or date to modify the terms may be risky. If the terms are modified in a different form, this act may constitute a breach of the agreement. Accordingly, many websites reserve the right to modify the terms and conditions at any time and without notice. That said, it is worth noting that as a best practice, most websites inform registered users when a change has been made. 

Example

Doodle may stop, remove, modify, or add (permanently or temporarily) Services (or features within Services) at Doodle's sole discretion. Any new, changed, or removed features are subject to the Terms of Service. Continued use of the Services after any such changes constitute your consent to the changes.

Source: Doodle.com 

Have we covered all?

No. The considerations we have made here are just a few. There are many considerations when it comes to drafting effective terms and conditions for a website. However, these are some of the most important provisions you can include. Each website is different. Accordingly, tailored terms are the best to serve the needs of each website. 

Key Take-Aways

  • A website owner is in a better position to manage the risks associated with the publication of the site if terms and conditions are created. 

  • Website owners should address essential concepts in their terms and conditions:

    • Permitted audience, use, and content.
    • Any restrictions on use imposed by the website.
    • A disclaimer of warranties.
    • A limitation, in whole or in part, of the website owner's liability.
    • An intellectual property policy. 
    • A privacy policy.
    • Governing law and choice of forum.
    • How the website may modify the Terms of Use.  

About the Author

Giselle Ayala Mateus

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of FOCUS a not-for-profit project focused on supporting entrepreneurs and artists.

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